Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sines v. Kessler

United States District Court, W.D. Virginia, Charlottesville Division

July 9, 2018

Elizabeth Sines, ET AL., Plaintiffs,
v.
Jason Kessler, ET AL., Defendants.

          MEMORANDUM OPINION

          NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

         In 1871, Congress passed a law “directed at the organized terrorism in the Reconstruction South[.]” Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 610 n.25 (1979); see 42 U.S.C. § 1985. Over a hundred and forty years later, on August 11th and 12th, 2017, the Defendants in this lawsuit, including the Ku Klux Klan, various neo-Nazi organizations, and associated white supremacists, held rallies in Charlottesville, Virginia. Violence erupted. Charlottesville residents who suffered injuries at the rallies, the Plaintiffs, allege that this violence was no accident. Instead, they allege the Defendants violated the 1871 Act and related state laws by conspiring to engage in violence against racial minorities and their supporters. The Defendants retort that they were simply engaged in lawful, if unpopular, political protest and so their conduct is protected by the First Amendment. While ultimate resolution of what happened at the rallies awaits another day, the Court holds the Plaintiffs have plausibly alleged the Defendants formed a conspiracy to commit the racial violence that led to the Plaintiffs' varied injuries. Accordingly, the Plaintiffs' claims largely survive, although one Defendant is dismissed and other claims are pared down.

         I. Legal Standard

         This opinion addresses one precise question: the legal sufficiency of the Plaintiffs' allegations that the Defendants conspired to engage in racial violence. This question comes before the Court because some of the Defendants have moved the Court to dismiss the complaint.[1] A motion to dismiss a complaint tests the legal sufficiency of the allegations to determine whether the Plaintiffs have properly stated a claim; “it does not, however, resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). And so the Court does not today choose between the parties' competing narratives of what “actually happened” at the August rallies.

         Plaintiffs' complaint is required to “to provide the ‘grounds' of [their] entitle[ment] to relief, ” but this “requires more than labels and conclusions[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). A court need not “accept the legal conclusions drawn from the facts” by Plaintiffs or “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011) (quotation marks omitted). But the Court takes all factual allegations in the complaint as true and draws all reasonable inferences in the Plaintiffs' favor. Rubenstein, 825 F.3d at 212. In sum, a complaint will survive a motion to dismiss if it contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

         II. Summary of Allegations

         Before addressing the complaint, three brief points are necessary. First, Plaintiffs' complaint is 112-pages long, pushing the limits of Rule 8(a)'s requirement of a “short, plain statement.” Fed.R.Civ.P. 8(a). While the Court will not ask the Plaintiffs to trim their complaint, the following summary will necessarily leave out some details. To the extent those details are material to the Court's analysis, they are discussed later in the opinion. Second, the complaint frequently uses vague nouns, lumping all Defendants and all co-conspirators together. Because this style of pleading raises problems addressed below, the following summary focuses on allegations that are tied to specific Defendants. Third, it is important to remember that the following summary is a recounting of allegations. While the Court does not repeatedly state “Plaintiffs allege that Defendant X did Y, ” this summary should not be taken as the Court's endorsement of one version of the facts.

         A. The Plaintiffs

         The Plaintiffs are ten Charlottesville residents who each allegedly suffered some injury related to the rallies. Their relationships to the Defendants fall into three general groups. First, there are those that attended a counter-protest on the night of Friday, August 11th, 2017. As discussed more fully below, various Defendants led a torchlight march at the University of Virginia. At the end of that march, some Plaintiffs were assaulted. One of these Plaintiffs was Tyler Magill, who was surrounded and assaulted by various marchers around a Thomas Jefferson statue. (Dkt. 175 at ¶166). The marchers hurled torches at Magill and others, sprayed them with pepper spray, and threw other liquids on them. (Id. at ¶¶169, 173, 174). He later suffered a “trauma-induced stroke” and related injuries. (Id. at ¶11). Plaintiff John Doe, an African-American UVA student, attended the march where he also was harassed and assaulted. (Id. at ¶13). He suffered various emotional injuries. (Id. at ¶293). A third Plaintiff, a UVA student named Natalie Romero, was also surrounded and assaulted at the statue. (Id. at ¶18).

         Second, another group of Plaintiffs was injured when one of the Defendants, James Fields, drove his car into a crowd of counter-protestors after the “Unite the Right” rally on Saturday, August 12th. Plaintiff Romero also falls into this second group, as she was hit by Fields's car and sustained subsequent injuries. (Id.). Plaintiff Marcus Martin, an African-American counter-protestor, was hit by Fields's car and sustained a broken leg and ankle. (Id. at ¶17). He pushed his fiancé, Plaintiff Marissa Blair, out of the way of the oncoming car, but she too suffered various physical injuries. (Id. at ¶16). Plaintiff Chelsea Alvarado was also hit by Defendant Fields's car, and she suffered physical and emotional injuries. (Id. at ¶19). Plaintiff Elizabeth Sines, a second year law student, witnessed the events and suffered severe emotional distress and shock. (Id. at ¶15). Plaintiff April Muñiz was close to being hit by the car, and she has been diagnosed with acute stress disorder and trauma since the event. (Id. at ¶12).

         Third, there are two other Plaintiffs who are more difficult to classify. Plaintiff Seth Wispelwey is a minister who led an ecumenical organization called “Congregate” in non-violent protest. (Id. at ¶¶11, 134). He was part of a church service across from the torchlight march on the 11th, was confronted by one of the Defendants after the torchlight rally, and was assaulted while counter-protesting on Saturday. (Id. at ¶¶178, 182, 208). The last Plaintiff is Hannah Pearce. She is a member of Congregation Beth Israel, a synagogue close to the park where the Saturday rally took place. (Id. at ¶14). She peacefully protested throughout the weekend and was subjected to anti-Semitic harassment. (Id. at ¶¶219-21).

         B. The Defendants

         Two of the primary organizers of the Friday and Saturday events were Defendants Richard Spencer and Jason Kessler. Defendant Richard Spencer planned the Friday night march and encouraged his many followers to attend the Saturday rally. (Dkt. 175 at ¶21). Defendant Jason Kessler is a Charlottesville resident who applied for, and eventually received, a permit to hold the Saturday rally. (Id. at ¶¶20, 55).

         Two other promoters were Defendants Christopher Cantwell and Michael Peinovich. Defendant Cantwell attended the events and faced criminal charges for using pepper spray at the Friday night march. (Id. at ¶22). Defendant Michael Peinovich hosts a podcast called The Daily Shoah and was featured on a promotional poster for the event. (Id. at ¶42).

         Many of the individual Defendants who helped plan the events are part of organizations that are themselves Defendants. Defendants Andrew Anglin and Robert “Azzmador” Ray run a website called The Daily Stormer. (Id. at ¶¶25, 27). They used this platform and associated “book clubs” to promote the events, which Ray attended. (Id.). The website is owned by an Ohio limited liability corporation, Defendant Moonbase Holdings, LLC. (Id. at ¶26).

         Defendant Vanguard America is a white nationalist group with twelve chapters across the country. (Id. at ¶24). Many of its members attended the events. (Id. at ¶¶153, 197). Plaintiffs alleged one of its members, Defendant James Fields, intentionally drove his car into a crowd of counter-protesters, killing one individual and injuring many others. (Id. at ¶23).

         Another organizer was Defendant Eli Mosley. (Dkt. 175 at ¶29). He is associated with the white supremacist organization Defendant Identity Evropa. (Id. at ¶¶29, 30). The founder of that organization is Defendant Damigo, who helped facilitate transportation for the events. (Id. at ¶28). Defendant Identity Evropa popularized the “You will not replace us!” chant that became the protesters' rally cry. (Id. at ¶30). Both Damigo and Mosley attended the events.

         Defendant Traditionalist Worker Party is a white nationalist organization, with many members who attended the rallies. (Id. at ¶33). It is led by Defendant Matthew Heimbach and Defendant Matthew Parrott. (Id. at ¶¶31, 32). Parrott wrote an account of his experiences at the Saturday rally, and he described how multiple Defendants used organized formations of “shield walls” in “the fight.” (Id.).

         Defendant League of the South and two of its leaders, Defendants Michael Hill and Michael Tubbs, were also involved in the fighting at the Saturday rally. (Id. at ¶¶34-36). Defendant Tubbs, in particular, led an organized charge of League of the South members against counter-protestors. (Id.).

         Defendant Augustus Sol Invictus is a member of Defendant Fraternal Order of Alt-Knights, which is the “military wing” of the white nationalist group “Proud Boys.” (Id. at ¶¶40- 41). He attended both events. (Id.).

         Two different Ku Klux Klan organizations also participated in some capacity. Defendant Loyal White Knights of the Ku Klux Klan organized a previous Charlottesville rally, and then made various statements celebrating Defendant Fields's decision to drive his car into counter-protesters. (Id. at ¶36). Defendant East Coast Knights of the Ku Klux Klan also attended the previous rally and then participated in the August 12 rally. (Id. at ¶44).

         Defendant National Socialist Movement is a white supremacist organization that has a “paramilitary” structure. (Id. at ¶38). Defendant Jeff Schoep, its leader, attended the rallies and afterwards tweeted that is was an “honor” to stand with the other “warriors.” (Id. at ¶37).

         Finally, Defendants Schoep, Heimbach, and Hill lead Defendant Nationalist Front, an umbrella organization that includes many of the aforementioned organizations. (Id. at ¶39).

         C. Months preceding August 11 and 12th

         Charlottesville drew Defendants' attention because of its decision to change the name of Lee Park, a small park in Downtown Charlottesville that contains a statue of General Robert E. Lee, to Emancipation Park in February 2017. (Dkt. 175 at ¶¶47-48). In May 2017, various white supremacist groups, including some Defendants, led a torchlight march around the Lee statue. (Id. at ¶50). “Capitalizing on the perceived success of the May event, ” Defendant Kessler submitted an application for a follow-up rally on August 12th. (Id. at ¶55). In the intervening months, various Defendants came to Charlottesville for marches and demonstrations. (Id. at ¶¶56-57). Plaintiff Romero protested one of these events, a Ku Klux Klan march, and received harassing phone calls afterwards from a member of the Klan. (Id. at ¶58).

         D. Planning for the August 11th and 12th rallies

         Key Defendants met together in person for planning purposes at least a few times. Defendant Spencer and Evan McLaren, a member of Defendant Identity Evropa, met at the Trump Hotel in D.C. to organize the rally on an unspecified date. (Dkt. 175 at ¶64). Closer to the rallies, Defendants Cantwell and Kessler then met on August 9th in Charlottesville to plan. (Id. at ¶65). Defendants Ray, Cantwell, Mosley, and purported co-conspirator David Duke had a similar meeting on August 11. (Id. at ¶66).

         Much more significantly, the majority of the planning appears to have occurred online. Defendants Kessler and Mosley used an online program called “Discord” for planning. (Id. at ¶¶71-73). This “invite only” platform allowed Defendants and their chosen invitees to engage in private conversations during the lead up to the events. (Id. at ¶72). While Defendants Kessler and Mosley moderated and managed Discord, many other Defendants participated on the platform, including Defendants Heimbach, Parrott, Cantwell, Ray, Vanguard America, Identity Evropa, Traditionalist Worker Party, League of the South, and Moonbase Holdings. (Id. at ¶¶74, 77). Organizational Defendants were able to maintain private sub-forums for their own members. (Id. at ¶77).

         Conversation on Discord included mundane planning details, racist “jokes, ” and concrete threats of violence. Defendant Mosley posted “General Orders” for “Operation Unite the Right Charlottesville 2.0.” (Id. at ¶75). Organizers also posted information about shuttle service information, lodging, and carpools. (Id. at ¶76). Other corners of Discord were significantly darker. One user posted a fake advertisement for a pepper-spray-look-alike called “Nig-Away, ” described as a “a no-fuss, no muss ‘nigger killer, '” promised to “kill[] on contact” in order to “rid the area of niggers.” (Id. at ¶111). Another frequent Discord user asked whether it was “legal to run over protestors blocking roadways?” (Id. at ¶239). He clarified he was not joking, “I'm NOT just shitposting. I would like clarification. I know it's legal in [North Carolina] and a few other states. I'm legitimately curious for the answer.” (Id.). Other Discord users made similar comments about running over counter-protestors. (Id. at ¶236-41). Elsewhere on Discord, users made it clear they planned to fight at the events, saying things like “I'm ready to crack skulls.” (Id. at ¶97). Defendant Kessler told users: “I recommend you bring picket sign post, shields and other self-defense implements which can be turned from a free speech tool to a self-defense weapon should things turn ugly.” (Id. at ¶ 112). Defendant Vanguard America instructed its members “to arrive at the rally in matching khaki pants and white polos, ” with one member noting that this was “a good fighting uniform.” (Id. at ¶ 115). Defendant Hill wrote, in a Defendant League of the South Facebook group, that he wanted “no fewer than 150 League warriors, dressed and ready for action, in Charlottesville, Virginia, on 12 August.” (Id. at ¶36). Similar comments from other Defendants abound.

         E. Counter-protestors prepare

         While this planning was ongoing, separate counter-protesters received permits to hold events in other parks during the Defendants' rally. (Dkt. 175 at ¶132). Plaintiff Wispelwey started an organization, “Congregate, ” to join with interfaith clergy in protesting against racial inequality and the rally. (Id. at ¶134). Defendant Kessler advised other attendees about Congregate's work, allegedly in an attempt to threaten the organization. (Id. at ¶135). The names of other counter-protestors were shared over Discord. (Id. at ¶137).

         Other individuals opposed to the “Unite the Right” rally also prepared. Plaintiff Pearce's temple, Congregation Beth Israel, moved its Torah scrolls off site in advance of the rally and changed the time of its normal Shabbat services. (Id. at ¶¶138-39). Stores around town put signs up supporting diversity and equality. (Id. at ¶140). Defendants Kessler, Mosley, Spencer, and Peinovich shared the names and addresses of these businesses, allegedly in an attempt to have attendees intimidate them. (Id. at ¶141). Some of these businesses received various threats. (Id. at ¶142).

         F. The march on August 11th

         Defendants Mosley, Spencer, Kessler, Ray, Anglin, Cantwell, and Invictus organized a secret torchlight march at UVA. (Dkt. 175 at ¶143-49). These torches were supposed to invoke the Ku Klux Klan's and Nazi's similar use of torches. (Id. at ¶150). The marchers marched two-by-two up the Lawn, around the Rotunda, and towards a Thomas Jefferson statue on the far side of the Rotunda. (Id. at ¶¶159, 164). As they marched, they chanted various racist slogans and performed Nazi salutes. (Id. at ¶¶161-62).

         Although the march was supposed to be secret, approximately thirty counter-protesters, including Plaintiffs Doe, Magill, and Romero, reached the Jefferson statute before the marchers. (Id. at ¶¶164, 169). The counter-protesters linked arms and surrounded the statue, facing away from it. (Id. at ¶164). As the marchers rounded the Rotunda, they charged towards the statue and surrounded the counter-protestors. (Id. at ¶¶164, 166). Fighting broke out, and the marchers kicked and punched the counter-protesters. (Id. at ¶168). People in the crowd threw an unidentified fluid at the counter-protesters, including on Plaintiffs Doe, Magill, and Romero. (Id. at ¶169). These Plaintiffs were afraid it was fuel and that they would be burned. (Id.). Defendant Ray shouted, “The heat here is nothing compared to what you're going to get in the ovens!” (Id.). A photo shows Defendant Cantwell spraying a counter-protestor with pepper spray. Id. at 56. (Id. at ¶172). Plaintiffs Doe and Romero felt trapped and did not believe they could escape safely. (Id. at ¶¶173-74).

         During this time, Plaintiff Wispelwey and around 1, 000 others were inside St. Paul's Church, which is located across the street from the Rotunda. (Id. at ¶154). The faith community at St. Paul's, including Plaintiff Wispelwey, witnessed the marchers. (Id. at ¶178). The church leaders asked everyone to remain at the church out of a fear of violence. (Id. at ¶180). Plaintiff Wispelwey eventually drove some attendees to their homes and hotels. (Id. at ¶181). At one hotel, Defendant Invictus confronted Wispelwey and aggressively asked him what he was doing at the hotel and what church he belonged to. (Id. at ¶182).

         The night ended with Defendants Kessler and Spencer, and others, celebrating the evening's events and encouraging their followers to come to the following day's rally. (Id. at ¶184).

         G. The rally on August 12th

         Almost all of the Defendants attended Saturday's “Unite the Right” rally, including Defendants Kessler, Cantwell, Mosley, Heimbach, Hill, Invictus, Ray, Spencer, Damigo, Peinovich, Fields, Parrott, Tubbs, Nationalist Front, League of the South, National Socialist Movement, Traditionalist Worker Party, Vanguard America, East Coast Knights, Loyal White Knights, Fraternal Order of Alt-Knights, and members of The Daily Stormer's “book clubs.” (Dkt. 175 at ¶187).

         Defendants arrived in passenger vans, gathered at pre-arranged meet up spots, and then marched towards the park. (Id. at ¶¶196, 207). They entered Emancipation Park “in military formations, armed like paramilitary forces.” (Id. at ¶195). Organizations marched with matching uniforms, coordinated shields, and regimental flags. (Id. at ¶¶197-98). Defendant Fields, who would later drive his car into the crowd, wore Defendant Vanguard America's uniform and marched with other Vanguard America members. (Id. at ¶197).

         As the military formations marched into the park, they assaulted and knocked over various counter-protestors, including Plaintiffs Wispelwey and Romero. (Id. at ¶208). Other counter-protesters were blockaded around the park, and rally attendees used “shields, flags, or fists” to break through these counter-protesters and enter the park. (Id. at ¶209). Once in the park, the violence escalated. According to an account of the day written by Defendant Parrott, members of Defendants Traditionalist Worker Party, League of the South, National Socialist Movement, and other Nationalist Front groups, jointly created “two shield walls” for “the fight.” (Id. at ¶212). Defendant Identity Evropa “were occupied on other fronts, ” but “sent a detachment of fighters to assist us and to relay intelligence to Jason Kessler and other organizers.” (Id.). Defendant Tubbs ordered Defendant League of the South members to “charge, ” and “[a]fter receiving this command, the group streamed past him to attack counter-protesters.” (Id. at ¶35).

         Some marchers also yelled anti-Semitic and Nazi slogans while passing Plaintiff Pearce's synagogue. (Id. at ¶202). Defendant Ray carried a banner that stated “Gas the kikes, race war now!” (Id.). An anonymous individual later threatened to “torch those Jewish monsters” in a comment on a YouTube video, leading Charlottesville's mayor to ask for police protection for the synagogue. (Id. at ¶203). Plaintiff Pearce and her son counter-protested the rally outside the park. (Id. at ¶220). She wore a Star of David and carried a rainbow flag. (Id. at ¶219). She was harassed by a rally attendee, who shouted, “Oh good, they are marking themselves for us.” (Id. at ¶220). Another rally attendee threw an open bottle with a “foul liquid” that hit Plaintiff Pearce. (Id. at ¶221).

         Then, at 11:22 a.m., Charlottesville declared the gathering an unlawful assembly. (Id. at ¶223). Defendants Kessler, Cantwell, Ray, Schoep, and Vanguard America among others, moved to McIntire Park. (Id. at ¶226-28). Defendant Parrott did not leave, and was arrested for failure to disperse. (Id. at ¶228). Violence continued in McIntire Park and on Charlottesville's downtown mall. (Id. at ¶¶229, 234).

         H. The car attack on August 12th

         At 1:40 p.m., Plaintiffs allege Defendant Fields deliberately drove his car into a crowd of peaceful protesters that were congregated at the intersection of Fourth Street and the Downtown mall. (Id. at ¶242). Plaintiffs Martin, Blair, Sines, Muñiz, Alvarado, and Romero were all on Fourth Street when Fields drove his car into the crowd. (Id. at ¶243). Multiple of these Plaintiffs were struck by Defendant Fields' car and incurred serious injuries. (Id. at ¶¶244-56). A friend of some of the Plaintiffs, Heather Heyer, was killed. (Id. at ¶248).

         I. Happenings after the event

         After the event, Defendants Anglin, Vanguard America, Kessler, Heimbach, East Coast Knights, and Loyal White Knights posted messages approving of the Defendant Fields's car attack. (Dkt. 175 at ¶¶264, 266-69, 272). Defendant Schoep said it was an honor “to stand” with the other co-Defendants at the rally, and referred to them as “true warriors.” (Id. at ¶271). Defendant Spencer referred to the rally a “huge moral victory.” (Id. at ¶273). Defendant Cantwell was glad nobody on the Defendants' “side” died. (Id.).

         Many Defendants have stated they would like to return to Charlottesville for a similar event. (Id. at ¶296). Defendant Spencer and others engaged in another torchlight march in Charlottesville on October 7, 2017. (Id. at ¶306). Defendant Kessler filed an application for another rally on August 11 and 12, 2018. (Id. at ¶307).

         III. Count One: 42 U.S.C. § 1985(3)

         In Count One, Plaintiffs allege all Defendants violated 42 U.S.C. § 1985(3), which states:

If two or more persons . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . . [and] if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

         The specific Defendants identified in footnote one moved to dismiss. The majority of the Section 1985(3) claims survive, although Plaintiff Pearce's claims against these Defendants will be dismissed, and all claims against Defendant Peinovich will be dismissed.

         Plaintiffs must plausibly allege the following elements to state a Section 1985(3) claim:

(1) a conspiracy of two or more persons, (2) who are motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act committed by the defendants in connection with the conspiracy.

A Soc'y Without A Name v. Virginia, 655 F.3d 342, 346 (4th Cir. 2011) (citing Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995)).[2] Importantly, and unlike Section 1983, Section 1985(3) reaches private conspiracies (i.e., there is no state action requirement). See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).

         In order to frame a Defendant-by-Defendant analysis of the pleadings, the Court works through these elements slightly out of order. The Court first addresses the requisite racial animus and purpose of the conspiracy (the second and third elements). After laying this framework, the Court evaluates the complaint to see if it plausibly alleges that each Defendant joined such a conspiracy (the first element). The Court then asks whether that conspiracy caused Plaintiffs' alleged injuries (the fourth and fifth elements). Finally, while Plaintiffs' overarching First Amendment and other defenses are addressed separately at the end of this opinion, the Court does flag specific allegations that are not protected by that Amendment throughout the following discussion.

         A. Racial animus

         Plaintiffs must plead that the Defendants were “motivated by a specific class-based, invidiously discriminatory animus.” A Soc'y Without A Name, 655 F.3d at 346; Francis v. Giacomelli, 588 F.3d 186, 196-97 (4th Cir. 2009) (same). No Defendant seriously disputes that Plaintiffs have adequately alleged Defendants possessed racial animus against black and Jewish individuals; the complaint is replete with racist statements made and affirmed by Defendants. However, some Defendants do argue that they only possessed racial animus against non-white individuals, and so they cannot be held liable by white Plaintiffs. But Section 1985(3) was enacted “to combat the prevalent animus against Negroes and their supporters.” United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 836 (1983) (emphasis added). And the Supreme Court has said the statute reaches “class-based animus” directed “against Negroes and those who championed their cause[.]” Id. (emphasis added). Here, Plaintiffs have plausibly alleged that they were attacked because of their support of non-white racial minorities, and so this element is satisfied as to all Defendants.

         B. Intent to deprive Plaintiffs of equal protection of rights secured by law

         In addition to racial animus, the purpose of the alleged conspiracy must be to “deprive the plaintiff of the equal enjoyment of rights secured by the law to all.” But importantly, “Section 1985(3) provides no substantive rights itself; it merely provides a remedy for violation of the rights it designates.” Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 372 (1979). And so, “[t]he rights, privileges, and immunities that § 1985(3) vindicates must be found elsewhere.” Scott, 463 U.S. at 833. The Fourth Circuit has further clarified that these underlying rights must be “rights guaranteed by federal law or the Constitution.” Doski v. M. Goldseker Co., 539 F.2d 1326, 1333 (4th Cir. 1976).

         Additionally, the federal substantive right “found elsewhere” must be “guaranteed against private impairment.” Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 274 (1993). For example, a plot by solely private parties to deprive individuals of their First Amendment rights is not actionable because those rights are only protected against public impairment (i.e., “Congress shall make no law . . .”). See Scott, 463 U.S. at 833 (“[H]ere the right claimed to have been infringed has its source in the First Amendment. Because that Amendment restrains only official conduct, to make out their § 1985(3) case, it was necessary for respondents to prove that the state was somehow involved in or affected by the conspiracy.”).

         In light of these limitations, the Supreme Court has noted there are “few” rights that can support a Section 1985(3) claim. Bray, 506 U.S. at 278. The only rights to be so recognized by the Supreme Court are “the Thirteenth Amendment right to be free from involuntary servitude, United States v. Kozminski, 487 U.S. 931, 942 (1988), and, in the same Thirteenth Amendment context, the right of interstate travel, see United States v. Guest, 383 U.S. [745, ] 759, n. 17 [(1966)].” Id.; see also Tilton v. Richardson, 6 F.3d 683, 686-87 (10th Cir. 1993) (same). ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.